Hodge Jones & Allen (HJA), the civil liberties law firm that specialises in actions against the police, has won in a judicial review against the Legal Aid Agency, successfully challenging restrictions that prevented those bringing claims against the police from accessing legal aid unless they could show that the police not only had acted unlawfully, but had also intended to act unlawfully.

The judgment in R (on the application of Sunita Sisangia)v Director of Legal Aid Casework, out today, is a victory against attempts to further restrict of the scope of legal aid funding and affirms the fundamental constitutional principle that members of the public should be able to hold public authorities to account in relation to unlawful loss of liberty.

The dispute centred around the meaning of the new test for public funding for claims against public authorities. The Legal Aid Agency had refused to fund Ms Sisangia’s false imprisonment claim against the Metropolitan Police on the basis that her claim did not meet the new test under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). The test set out in LASPO is that claims against a public authority will be funded where there is a deliberate or dishonest act or omission causing harm.

The Legal Aid Agency argued that to qualify, claimants would now need to prove not only that the defendant state agency had acted unlawfully when arresting them; they would also have to show an additional ‘abuse of power’ whereby officers exercised their powers with malice, taking their definition from the old funding guidance which LASPO replaced.

It was common ground in Ms Sisangia’s case that the police had intended to arrest her and the claim is that they did not have grounds to do so. The Legal Aid Agency argued that it was not enough to show that the police deliberately arrested the claimant. She would now have to show in addition that the police arrested her knowing that they did not have powers to do so. This added an additional, and far higher, hurdle to qualify for funding.

This interpretation effectively excluded from scope for legal aid funding all claims which did not involve allegations of dishonesty or bad faith on the part of the state agent. This was contested by HJA’s lawyers.

In his judgment Mr Justice Dingemans disagreed with the Legal Aid Agency’s decision, believing it to be against the intention of Parliament when drawing up LASPO. He found that it would be ‘surprising’ if parliament had intended applicants to additionally prove a separate abuse of power but had left this additional requirement undefined. He also found that the Legal Aid Agency’s more restrictive test contradicted the clear wording of the statute, which provides for acts / omissions which are deliberate OR dishonest to qualify for funding. The Legal Aid Agency’s interpretation would effectively require every claim to show dishonesty in order to qualify for funding.

Commenting on the decision, Trudy Morgan, solicitor at Hodge Jones & Allen says, “The decision today is a significant victory for civil liberties in this country and I am pleased that we have been able to ensure funding, both for our client’s case and future cases of false imprisonment. Being able to hold state authorities to account for unlawful loss of liberty is an important constitutional safeguard. Before LASPO, cases of false imprisonment were always funded by legal aid and restricting funding only to dishonesty cases was never the stated intention of Parliament. The situation where people who had been unlawfully detained by the state had no recourse to public funding in order to hold the state to account was unacceptable.

“Practitioners have noted an increasing tendency for the Legal Aid Agency to focus on reasons to refuse funding, presumably in a bid to further reduce the legal aid bill. If this is indeed the case, it means that there is a real danger of narrowing the scope of funding beyond what was intended by Parliament. I am pleased that with this case we have been able to limit an attempt to restrict public funding for cases where fundamental rights are at stake.”

This is the latest successful challenge to LASPO following on from The Queen on the application of LCCSA and CLSA v The Lord Chancellor [2014] EWHC 3020 (Admin) which related to the criminal legal aid consultation process and The Queen on the application of the Public Law Project v The Secretary of State for Justice [2014] EWHC 2365 (Admin) relating to the residence test.

The Civil Liberties team at Hodge Jones & Allen is one of the UK’s foremost teams in bringing actions against the police and state authorities. The team has a track record of holding authorities to account, including police forces, the Independent Police Complaints Commission, the Prison Service, Coroners, the Ministry of Defence, the Crown Prosecution Service, immigration detention centres and healthcare providers.

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